Custody Should Not Have Been Awarded to Nonparent

The Third Department, reversing Family Court, determined custody of mother’s child should not have been awarded to mother’s sister. Mother was being treated for mental illness and had lost her home. The relationship between mother and sister was acrimonious. Mother, however, despite her difficulties, had tried to maintain her relationship with her child and the child was described well-adjusted, doing well in school, and involved in activities. The court explained the heavy burden placed on a nonparent seeking custody:

“A determination of whether extraordinary circumstances exist takes into consideration such factors as the length of time the child has resided with the nonparent, the quality of the child’s relationships with the parent and the nonparent, the prior disruption of the parent’s custody, separation from siblings and any neglect or abdication of responsibilities by the parent” … . Generally, such a finding is rare and exists where the extraordinary circumstances “drastically affect the welfare of the child” … .

In our view, no such finding was warranted here. When this proceeding was commenced, the child had been residing with petitioner in her home — located more than an hour drive from the mother — for only a few days. During her 10-day hospitalization, the mother continued to attempt to maintain contact with the child. When she was released from the hospital, the mother’s attempts to see the child were hindered not only by her health issues, the loss of her home, distance and lack of transportation, but also by the extreme and unfortunate animosity between the mother and petitioner. The mother did not neglect her responsibilities; rather, during the pendency of the hearing, she was obtaining regular mental health treatment, sought help and obtained a suitable apartment and car, and was employed as an adjunct professor. While a health crisis of any sort can be frightening and upsetting to a child, the record does not reflect that the child’s relationship with her mother was any worse than the one she shared with petitioner. Notably, Family Court recognized that the child was “a wonderful young lady[, well-adjusted, very knowledgeable, intelligent, doing well in school [and] involved in activities,” and that the mother “played a significant role and ha[d] done a very good job of raising” the child. Matter of Lina Y. v Audra Z., 2015 NY Slip Op 07708, 3rd Dept 10-22-15